Negligence Elements

Question 1

Elements: Prima facie case for negligence

Answer 1

1. Duty
2. Breach
3. Causation
4. Damages

Question 2

Elements: Duty

Answer 2

Would a reasonable person of ordinary prudence in the defendant’s position act as the defendant did?
There’s a duty to Any foreseeable victim.
Specific situations: Duty to rescuers and prenatal injuries
If you hurt somebody you’re liable for the rescuer too

Question 3

Elements: standard of care for physical disability

Answer 3

Objective: What a reasonable person with this disability would do

Question 4

Elements: standard of care for mental disability

Answer 4

Doesn’t matter: it’s what a reasonable person would do. mental characteristics don’t matter

Question 5

Standard of care for intoxicated person?

Answer 5

Doesn’t matter. If you’re drunk you’re held to the standard of a reasonable sober person
Remember Negligence has no intent element

Question 6

Standard of care for Children?

Answer 6

Subjective test: what a reasonable person of that age, experience, and intelligence would do under similar circumstances

Exception for adult activities and children under 4

Question 7

Standard of care in emergencies?

Answer 7

Standard is what a reasonable person confronted with that emergency would do

Question 8

Standard of care for people with superior knowledge?

Answer 8

If a person has higher degree of knowledge that person must use it.

Question 9

Standard of Care for professionals?

Answer 9

A community Standard
Professional standards taht prefvail in the community where the professional practices his skills

Question 10

Standard of Care for Doctors?

Answer 10

National standard
Only has duty to patient in most cases- privacy and confidentiality

Duty to disclose Risk of treatment to get informed consent

Question 11

Exceptions to general rule there is no duty to aid

Answer 11

Voluntary assumption of care: you must use reasonable care (once you start you can’t stop)
Creation of peril- (if you start some shit you can’t walk away)
Relationship between parties (you need to take care of your kids)
Special relationship upping the standard- Common carriers, Innkeepers, Shopkeepers, Prison officers

Question 12

Elements: Breach

Answer 12

If the defendant fails to conform to the applicable standard of care he has breached

Question 13

Elements: Negligence Per Se

Answer 13

1. Statute must apply to the facts: class of persons and the particular type of harm protected by the statute
2. No excuses: compliance would cause more harm than good; compliance beyond defendant’s control (defendant ran red light because he had heart attack; reasonable person standard)

Question 14

Elements: Res Ipsa Loquitor

Answer 14

1. No direct evidence of defendant’s precise conduct
2. Accident normally doesn’t occure without negligence by somebody
3. Instrument was in defendant’s control

Question 15

Elements: Cause in Fact- One Cause

Answer 15

But for Test- but for breach, the plaintiff wouldn’t have been injured

Question 16

Elements: Concurrent Causes

Answer 16

2 or more causes of the injury each of which by itself to cause the injury.
Use the substantial factor test- if one of the causes was a substantial factor in bringing about the plaintiff’s injury, it will be considered the cause in fact
Both Substantial Factors = Joint Liability

Question 17

Elements: Alternative Causes

Answer 17

When multiple parties breach the duty, but we can’t prove which one actually caused the injury
Burden shifts to defendants to duke it out. If you still can’t figure it out they’re both liable

https://www.quimbee.com/cases/summers-v-tice

Question 18

Elements: Proximate Cause

Answer 18

The general type of accident was a reasonably foreseeable consequence of the defendant’s conduct

Question 19

Elements: Indirect Causes

Answer 19

Third party’s conduct comes after the defendant’s act it is an intervening act
When that third party act prevents the defendant from being liable it is a superseding act
If the act is a foreseeable “dependent” event- the defendant is liable for all of the damages
If the act is an unforeseeable “independent” the defendant will not be liable

Question 20

Proximate Cause: Dependent vs Independent Events

Answer 20

Dependent Events- defendant is liable
Medical Malpractice
Negligence of Rescuers
Others reacting to defendant’s negligence
Subsequent disease
Subsequent accidents
Independent Events-defendant not liable
Negligent act of third parties
Crimes & Intentional torts of third parties
Acts of God- Natural Disasters

Question 21

Negligence

Defenses: Contributory Negligence

Answer 21

Complete Bar
If plaintiff was also negligent, the plaintiff is completely barred

Last Clear Chance Doctrine- if the defendant could have prevented the harm right before the accident and the plaintiff couldn’t, the plaintiff won’t be barred from recovering.

https://www.quimbee.com/cases/fuller-v-illinois-central-railroad-co

Question 22

Negligence

Defenses: Comparative Negligence

Answer 22

The plaintiff’s negligence is not a complete bar, but it reduces by a percentage based on the jury’s determination of fault

Partial comparative negligence- plaintiff assigned more than 50% he can’t get anything
Pure comparative negligence

Question 23

Negligence

Defenses: Assumption of Risk

Answer 23

Plaintiff is denied recovery if the plaintiff voluntarily consented to a known risk
Implied Assumption of Risk- plaintiff assuems the risk by his conduct (voluntarily proceeds in face of known risk)
Espress Assumption of risk- plaintiff expressly agrees with defedant in advance of any harm that the plaintiff will not hold the defendant liable

Question 24

Premises Liability

Duty to those off premises- Natural conditions on premises

Answer 24

No duty to protect

But owner sill be liable for damage caused off the premises by natural conditons on the premises if negligent (e.g., tree branches on your property fall on your neighbors as a result of negligence)

Question 25

Premises Liability

Duty to those off premises- Unreasonably Dangerous Artificial Conditions

Answer 25

If you do something to improve the land you will owe duty of reasonable care

Reasonable care- If a duty is owed the owner can satisfy by either making the condition safe or warning

Question 26

Premises Liability

Duty to those off premises- Activities on property

Answer 26

If you do something on your property you must use reasonable care to protect those off your property (e.g., if you’re hunting on your property and bullets go off your property you have to use reasonable care)

Question 27

Premises liability

Duty to those on premises- Licensees

Answer 27

Licensee is social guest who enters land with owner’s consent with no business purpose
You do not have to inspect your property and you’re not liability for dangers you don’t know about.
You can’t be reckless or grossly negligent though

Activities on property= reasonable care
Unknown concealed dangers = no duty to inspect
Known concealed dangers = duty to warn (if there’s a loose step that you know about you need to warn your social guests)

Reasonable care- If a duty is owed the owner can satisfy by either making the condition safe or warning

Question 28

Premises liability

Duty to those on premises: Invitees

Answer 28

Invitees are customers or people on the land for whatever the purposes of the land is held open for
(There are more duties for invitees as you have to inspect for unknown concealed dangers)
Activities on property- reasonable care
Unknown concealed dangers- duty to inspect with reasonable care
Known concealed dangers- duty to warn

Question 29

Premises liability

Duty to those on premises: Undiscovered Trespassers

Answer 29

No duty of care

No duty of care because they are unforeseeable victims

Question 30

Premises liability

Duty to those on premises: Discovered Trespassers

Answer 30

There is a duty owed to anticipated or expected trespassers (i.e. expected from a pattern of previous trespassing)
Activities- Reasonable care
Dangerous condition on land- duty to warn or make safe
Artificial condition- reasonable care
natural condition- no duty
highly dangerous- may have duty
hidden condition- no duty to prtoect from open and obvious hazards;
MUST KNOW OF THE HAZARD. You don’t have to inspect your land for hazardous conditions for trespassers

Question 31

Premises liability

Duty to those on premises: children

Answer 31

Activities on property - reasonable care
natural condtions - no duty unless licensee or invitee
Artificial conditions & the attractive nuisance doctrine- landowner has duty to exercise reasonable care to avoid a reasonably foreseeable risk of serious harm to children caused by attractive artificial conditions

Question 32

Elements: Attractive Nuisance

Answer 32

1. dangerous artificial condition the owner should know about
2. owner knows children probably will trespass
3. condtion probably will cause injury
4. children too stupid to know about the danger
5. risk to children substantially outweighs expense of eliminating
6. owner fails to exercise reasonable care

Question 33

Premise liability

Duty to firefighters and public safety personnel

Answer 33

Owner never liable to them for doing their jobs

Question 34

Elements: NIED

Answer 34

1. Zone of physical danger (plaintiff present at scene) = threat of physical impact leads to emotional distress or special relationship between plaintiff and defendant (e.g., doctor mistakenly tells patient he has AIDS)
2. Plaintiff observed or perceived the injuury
3. Physical manifestation of harm